Madan Singh and Suraj Parkash vs State

This appeal is directed against the judgment of learned special Judge AntiCorruption, Jammu dated April 24, 1986 convicting accused

appellants under Sec. 120B, R. P.C. and sentencing each one of them to undergo rigorous imprisonment of two years and a fine of Rs. 5000/.

Anti Corruption Organization. Jammu received information on August 10, 1979 that Suraj Parkash, appellant herein, who was Sectional Officer,

Irrigation Division Darmari, received consignment of 200 bags of cement on August 9, 1989 for being lifted for Irrigation Division Darmari and got

it loaded on truck No. JKB 3545 which he, in connivance with driver and 'other employees of the Department misappropriated and sold to

owners of K. C. Vanspati factory. A case F. I. R. No. 9 of 1979 under Sec. 5(2) P.C. Act, 409, 120BRPC was registered. During investigation

of that case AntiCorruption Organisation registered two other cases, F. 1. R. Nos. 10&11 pertaining to misappropriation of another consignment

of 200 bags of cement by the appellants and others meant for Irrigation Division Darmari and some cement despatched for P. VV. D. Division

Rajouri.

This case relates to the consignment of 20o bags of cement which Suraj Parkash appellant received on 791979 and which according to the

prosecution he alongwith owner of vehicle No. JKP3845 and others misappropriated.

Prosecution version was that Suraj Parkash, appellant No. 2, (A2 hereafter), was storekeeper Irrigation Div. Darmari of District Udhampur and

he was assigned the job of collecting 500 bags of cement from Mechanical Stores Jammu. In this connection he was authorised by the Executive

Engineer, Darmari vide letter No. 532 dated 1271979 to collect the same. He got the consignment of 200 bags of cement on 781979 and same

was loaded in truck No. 3845 JKP owned by Madan Singh appellant No. I, (A1 hereafter). Second consignment of 200 bags of cement was

obtained by A2 on 981979 and this cement was also loaded in the said truck. Both these consignments were for Darmari Irrigation. A2 after

getting both the abovesaid consignments sold the same to A1, owner of the above said vehicle who in turn sold it to various persons.

As pointed out above this case relates to F. I. R. No. 11 of 1979 registered on 1581979 during the investigation of F. I. R. No of 1979

registered earlier on 1081979 and it pertains to consignment of 200 bags of cement received by A2 on 7879. AntiCorruption organisation in this

case besides implicating A1 & A2 challaned Satinder Singh, Parshotam Singh, Karan Singh whom A1 allegedly sold cement and Mahatam Singh,

E. T. O. Rajouri, Dev Singh S. I. Excise, Surinder Nath Dubey S. I. Excise and Kanwal Singf] Excise guard.

Prosecution case against Satinder Singh, Parshotam Singh and Karan Singh was that they obtained cement from A1 which he had received from

A2 and case against others was that they entered into criminal conspiracy with A1 & A2 and in their record wrongly mentioned about carrying of

cement by truck No. 3845 JKP from Ramnagar Octroi post.

I have heard the learned counsel for the appellants and the learned Addl. Advocate General. I have perused the record before me. Prosecution

produced a set of witnesses in order to establish that A2 was working as a 'sectional officer in August, 1979 and in Dharmari Division and at the

relevant time he was holding charge of storekeeper. In this respect prosecution has examined M/s Khalil Sofi, Ram Ditta, Krishan Lal and

Devinder Gupta P. ws to prove this fact. A2 in his statement under sec. 342Cr. P. C. has admitted of his being a sectional officer holding the

charge of storekeeper at that time. Next point on which stress had been laid by the prosecution is regarding entrustment of consignment of 200

bags of cement on 781979 to A2 which cement was loaded in truck No. 3845JKP. In this respect prosecution has produced M/s Ved Parkash

Gupta, Pdtam Gupta and Om Parkash Gupta witnesses all from the Mechanical Stores Jammu. So far obtaining of this consignment of 200 bags

on, 7879 and loading the same in truck No. 3845JKP are concerned, this fact has been admitted by Suraj Parkash A2 in his statement under sec.

342Cr. P. C. So the fact that cement was taken over by A2 and the same having been despatched to Darmari stood established and the defence

has also not disputed it. There is also evidence on record that on 7879 truck carrying 200 bags of cement left Mechanical Stores Jammu and such

entry was made by octori post in Mechanical Stores,. Jammu, There is also evidence on record that said truck reached Ramnagar Octroi Post and

was shown to have left that post out of Municipal limits of Jammu. Prosecution in this regard roped in the officials of the Excise Deptt. as

coconspirators on their having falsely recorded the exit of the said vehicle from within Municipal limits of Jammu and also from Octroi Post

Ramnagar and these excise officials namely Mahatama Singh, ETO, Rajinder Singh S. I. Surinder Nath Dubey and Kamal Singh who were tried

alongwith other accused persons were acquitted by the Trial Court with the observation that there was no evidence implicating them with the

abovesaid allegations. There is another allegation that this truck did not cross Nagrota Toll Post on that day and in this regard prosecution has

produced S. Manobar Singh who was posted as E. T. O. Nagrota in the month of August, 1979. This witness has not given substantial evidedce

excepting that in the record there was no mention about the abovesaid truck crossed Nagrota post. This witness was, however, not fully aware

about the facts and he based his statement on the report made to him by his officials.

The main allegation against the accusedappellants was that vehicle No. JKP3845 did not reach Irrigation Division Darmari. F/o elution in this

respect has led evidence of P. Ws. Ram Ditta, Sudarshan Kapoor Chief Security Officer Salal, Rattan Chand Tehsildar Reasi, Krishan la) and

Abdul Zaman. Ram Ditta P. W. has stated that the department of Irrigation had obtained on rent one of his room at Arnas on monthly rent of Rs,

40/ and Bir Singh who was posted as chowkidar there. He, however, could not say whether any cement had been delivered in the store in the

month of August, 1979. This witness was declared hostile and in his crossexamination he has stated that some body came to him and told that he

had left 200 bags of cement somewhere and he wanted Bir Singh to make entry in the register but Bir Singh refused to do so and demanded that

cement be brought before such entry could be made. He further deposed that 200 bags of cement was stored in the store when Anticorruption

people went there to verify it. He has also stated that there were two stores, one under his ownership and another owned by Chunilal, situate at a

distance of 200 yards. Sh. Sudarshan Kapoor P, W. has stared that he was posted as Chief Security Officer at Jyotipuram and truck No.

3845JKP did not pass from the barrier installed there upon 11879. P. W. Rattan Chand who was posted as Thsildar at that time has stated that

AntiCorruption requested him for physical verification of the state belonging to Irrigation Department and he accompanied by other officials verified

the store containing more than 2600 bags of cement. Police seized the cement and gave it on spurdnama of some employee of the department. P.

W. Krisharila) who was chowkidar of the store has stated that vehicle No JKP3845 did not bring cement to the store. According to him vehicles

were coming loaded with cement and he did not remember their numbers. He has further stated that &tore was verified by the Anticorruption

Department and 20 bags were fund in excees. He end Abdul Zaiuan, another chowkidar, were directed to keep quiet about it. P. W. Abdul

Zaman was also posted as chowkidar at Darmari Division Krishanlal P. W. was also chowkidar there and he was maintaining record of cement.

Another important witness produced by the prosecution in this regard is Khalil Mohd Sofi, Executive Engineer. He has stated that after enquiry

made from Krishan Lal chowkidar he addressed a letter to the Anticorruption Organization that truck No. 3845JKP did not reach the store with

consignment of cement. According to him cement wag firstly brought to central store Reasi from where it was supplied to subdivisions but on some

occasions same was carried direct to the site. This witness had no personal knowledge about the consignment nor be recorded the statement of

Krishanlal in that regard.

If we analyse the above evidence we find that there is no specific evidence to establish that truck No. JKP3845 did not come with cement at the

store. The question of Jyotipurum check post does not I arise as cement was either to be unloaded at Reasi, which place is on way to Jyotipurum,

or it was to be taken to the site direct. Validation of the store was made but there Is no evidence on record that this consignment of 200 bags was

not available in the store. Officers of the department and even the police officials, who verified the cement, did not state so. There is, however,

evidence of P. W. Krishanlal choukidar who was in fact the main man that 20 bags of cement was found excess in the store. The explanation of

A2, Suraj Parkash, in this regard is that he was at Jammu up to 1181979 and after loading both the consignment on 7879 and 9879 he was quite

ignorant about their unloading at proper destination. This explanation of the appellant cannot be brushed aside summarily. He got loaded both the

consignments on 7879 and 9879 at Jammu and remained at Jammu up to 11879. There is another circumstance which also cannot be ignored in

this case that the driver of truck No. 3845JKP on 7879 according to Suraj Parkash A2 was Jasbir Singh but prosecution has failed to bring on

record that Madan Singh A1 who was owner of the vehicle was in fact the driver on that day also. Prosecution has not placed on record any

evidence in this respect even though on 9879 when another consignment was loaded Madan Singh was driving the vehicle. It seems that the

prosecution took it for granted that Madan Singh A1 was the drivercarrier on 7879 also. Prosecution has also brought on record evidence of

Madan Singh A 1 being the owner of other vehicles also and it cannot be presumed that he was driver of all the vehicles at the same time.

Another point stressed and tried to be established by the prosecution was the irregularity committed by A2 in procuring vehicle for

transportation of cement from Jammu to Darmari. In this connection it was alleged that transporters had formed an association of transport

companies known as Transport Union and private as well as Government consigners used to issue demands to the union for providing vehicles to

carry their goods to various destination. The driver or the owner of vehicles would report to the union, if available, for being engaged to carry

goods and the union in turn was allotting vehicles for the purposes of carrying goods of the consignees. A duty slip was issued by the union. The

driver or the owner then was allotted vehicle on the basis of duty slip or allotment chit from the consigner and used to report the fact of allotting to

the transport company with which it was attached. The company concerned would then issue challan about the goods mentioning destination and

the rate. According to the prosecution this process was not adopted while loading cement for Darmari Division on 7879 and 9879. The evidence

as produced by the prosecution in this regard consisted of Mahinder Singh, Mian Singh, Mehar Singh, and Gurbux Singh witnesses. These

witnesses have, however, admitted that there was no statutory bar on the driver or the owners of vehicles to load vehicles without authority of

transport union or the \ transport company nor was there any rule or procedure binding any, department, authority or officer of the Government to

obtain motor vehicles from transport union only and from nowhere else for the purpose of loading goods. There is no allegation of the prosecution

that A2 was under order, instructions and legal obligation to put the demand before the union or transport company for allotment of vehicles. On

(he other hand there is evidence on record that number of vehicles were available in the Mechanical store Jammu which were ready to take goods

from store itself. It was in these circumstances not necessary for A2 to search about transport union's office or transport company's office and

demand transportation by a particular vehicle. Prosecution wanted to prove the fact that the appellants, as well as other accused before the trial

court, conspired in this regard and selected vehicle of Al Trial Court has also drawn adverse inference from this circumstance in order to establish

conspiracy between the appellants. No circumstance has been indicated under which Al, Madan Singh, was in a position to offbr his vehicle

without allotment from the union. The fact that cement was loaded in the vehicle was established and the prosecution did not come with the theory

that cement was not loaded at all in the vehicle. This circumstance, therefore cannot be treated for drawing inference regarding conspiracy hatched

out by the appellants

Prosecution version was that cement was sold by A2 to Al @ Rs. 24/ per bag and the same amount pertaining to 400 bag was recovered

from the possession of A2. No evidence has been led to establish that any bargain was negotiated or struck between the appellants. However, the

prosecution produced Mukhtiar Singh and Ram Kumar Puri as witnesses to prove the disclosure statement of A2 and recovery of Rs. 92501 from

his possession. Admittedly both these witnesses are respectable persons but they have categorically denied the abovesaid facts. According to

these witnesses Suraj Parkash did not make any statement nor was recovery effected from his possession. \Mukhtiar Singh P. W. has stated that

he was passing by the office of Anticorruption when he was called in. Money was lying at the table and one officer in civil dress was writing a

document. He did not know how much money was lying there and he was only made to sign a document. Ram Kumar Puri P. W. was called by.

the Ami corruption personnel where Suraj Paikash A2 was also present. A2 did not make any statement in his presence. Some money, according

to' this witness, was lying on the table which was seized. Thus from the abovesaid evidence it is not established that any deal took place between

the appellants regarding sale of cement. There is also no evidence to show that the sale price of Rs. 9250/ was recovered from A2 at his instance.

There is another allegation that Madan Singh sold cement to Satinder Singh, Parshotom Singh and Karan Singh who were arrayed as accused.

No evidence was led by the 'prosecution to prove this fact. Trial Court also found no case made out against these persons and acquitted them.

From the above discussed facts and circumstances no case is made out against the appellants. Their appeal is, therefore, accepted and

conviction and sentence recorded against them are set aside. They shall stand acquitted of the charges framed against them.

Trial Court has not passed any order regarding disposal of the or amount recovered in the case. This amount has not been claimed by the

appellants. This amount shall stand forfeited to the Government; and shall be deposited in Government Treasury.